Associative Disability Discrimination

Associative disability discrimination - what's that all about
then? Well, in broad terms, it means discrimination by association
with a disabled person. What is not so easy to answer is whether
associative disability discrimination is a legally recognised
concept. That question is presently being wrestled with in the case
of Attridge Law v Coleman, EAT, 9 November 2006.

Miss Coleman was formerly employed by a firm of solicitors,
Attridge Law. She resigned from her employment and presented an
application to the Employment Tribunal complaining of constructive
dismissal and disability discrimination. The latter complaint is
founded not on the fact that Miss Coleman is disabled but rather on
the grounds that she is the carer of a disabled person, namely her
son.

The legislative basis for disability discrimination is, of
course, the Disability Discrimination Act 1995. On the face of it,
that Act does not prohibit associative disability discrimination.
However, that does not, by itself, mean that Miss Coleman's claim
will necessarily fail. The 1995 Act is part of the UK's attempt to
implement European legislation. It is therefore permissible to go
back to the European legislation to see if a proper construction of
that prohibits associative discrimination. If it does, and the 1995
Act can be read consistently with that construction then Miss
Coleman would have a valid complaint of associative disability
discrimination.

In Miss Coleman's case, the Employment Tribunal decided to refer
the question of whether the European legislation prohibits
associative discrimination to the European Court of Justice.
Attridge Law appealed that decision but the EAT refused the appeal.
Once the European Court of Justice has considered the matter, the
case will then go back to the Employment Tribunal with the
possibility of the Tribunal then requiring to decide whether the
Disability Discrimination Act can be interpreted in such a way as
to include protection for associative discrimination.

A couple of interesting matters to note about Miss Coleman's
case is that it is being backed by The Disability Rights Commission
(the DRC) and that the lead Counsel acting for Miss Coleman is Mr
Robin Allen QC. Mr Allen was also the lead Counsel in Archibald
v Fife Council 2004 IRLR 651. Mrs Archibald also had the
backing of the DRC. At the risk of reading too much into this, it
would appear that the DRC regard this as a test case that is worth
pursuing. Whether they will succeed again remains to be seen but,
if they do, there is no doubt that the scope of disability
discrimination will be stretched considerably if non-disabled
employees will have the protection of the 1995 Act on the basis of
their association with disabled persons.